Special statement on ministerial undertakings

One of the most important elements of the operations of the Standing Committee on Regulations and Ordinances is the practice of accepting undertakings from Ministers to amend or to take other action in relation to legislative instruments about which the Committee has concerns. The Committee accepts such undertakings even though amendment will take place in the future, in order to ensure that the implementation of policy and day to day administration of programs continues smoothly. When it accepts such undertakings the Committee withdraws any protective notice of disallowance which it has placed on the instrument, or refrains from giving a notice if it has not already done so. The Committee therefore relies on the good faith of Ministers to implement promptly any undertakings.

Prompt and timely implementation of undertakings is central to the success of the practice which the Committee has adopted. Failure to honour this principle could constitute a breach of parliamentary propriety and a breach of ministerial ethics. It is also deplorable because delay in implementation means that legislative instruments not only identified by the Committee but also accepted by the Minister as defective in relation to parliamentary propriety or personal rights, continue to be in effect and presumably be administered to the detriment of public life and to those people affected by the deficient instruments.

The Committee records and monitors the progress of ministerial undertakings and each Annual Report describes undertakings implemented during the reporting period and those which are still outstanding. Also, due to the efforts of the Committee, Explanatory Statements for instruments which implement undertakings advise of that fact. The Annual Report 1997-98 listed 87 instruments in relation to which undertakings had been implemented or were still outstanding. Unfortunately 42 of these were still outstanding and the Committee decided to take further action.

The Committee accordingly wrote to every Minister in whose portfolio responsibility there were outstanding undertakings, asking for reasons why the undertaking has not been implemented and for advice on when this would be done. The letter also asked for the date on which the portfolio agency had issued drafting instructions for the required amendments. The letter indicated that in the absence of a satisfactory explanation for delay the Committee intended to ask suitably senior agency officers to appear before it to explain the position in detail. The Committee asked if the matter could be given a high priority for attention.

The Committee can now report that it has received replies from Ministers which indicate that virtually all of the undertakings have been implemented, or that drafting of amending instruments has been completed or drafting instructions issued. This was pleasing, particularly because sometimes undertakings are qualified by saying that they will be implemented when the principal instrument is next amended. In several other cases a review of the program or an amendment of the enabling Act or the instrument had resulted in the concerns of the Committee not being met. In cases where a review was still in progress or was about to be initiated the Minister usually expressly assured the Committee that its concerns would be accommodated. In one case the Committee was advised that regulations had not been implemented due to an oversight, but that this would be rectified as soon as possible. Overall, the replies from Ministers demonstrated an awareness of the importance of an undertaking given to the Committee and of its prompt implementation.

The replies did, however, reveal one matter that was not satisfactory. In this case regulations gave an agency the power to decide subjectively which matters were relevant to arbitration of a dispute, and then to take them into account when making a determination. This provision was in contrast to two other provisions where the agency was either bound or permitted to take account of matters which are objectively relevant to the issue. In reply to the Committee’s query, the Minister advised that the regulations would be amended at the next available opportunity to make them consistent. The Committee assumed that this meant that the power would be made objective, but it appears that the Minister meant that another of the powers would be made subjective. The Committee is pursuing this matter.

In two cases the Minister advised that, although undertakings had not yet been implemented by formal amendment, administrative action had been taken to meet the Committee’s concerns pending amendment of the respective instruments. In each of these cases this was a less than satisfactory response because the deficiencies in question involved personal rights, which is an area where problems noted by the Committee should be addressed as soon as possible. One of the cases involved a lack of mandatory notice of safeguards for administrative penalties imposed by public officials, which the Minister advised was remedied by a detailed information sheet attached to infringement notices. The other case, which was particularly relevant in the light of recent discussion of the international organisation of the Olympic Games, concerned the Australian Sports Drug Agency Regulations made expressly to enable the Agency to provide leadership in the fight against the use of prohibited drugs in sport up to and beyond the Sydney 2000 Olympics. Here, following inquiries by the Committee, administrative action was taken to protect the rights of intellectually disabled athletes and of commercial companies dealing with the Agency. In both the present cases drafting instructions have now been issued.

In a number of cases Ministers had given an undertaking to amend the enabling or some other Act to meet the Committee’s concerns. In one such case the required amendments had been passed by the House of Representatives but were still being considered by the Senate and consideration of another had reached an advanced stage with drafting instructions to be issued shortly. In another case the Minister advised that a particular program did not proceed and an undertaking was inadvertently overlooked. However, the Minister had asked the agency for advice on the amendments to the Act necessary to meet the undertaking and would advise the Committee when this was received. In two other cases the undertaking had been delayed due to the need to amend the enabling Act before implementation could be progressed.

Other undertakings were affected by changes in the enabling Act. In two cases the Minister advised that amendments of the enabling Act resulted in the particular undertakings becoming unnecessary because the relevant legislative provisions had been superseded. In another case the Minister advised that extensive amendments of the Act following a major review had delayed implementation of undertakings, although draft amendments of the required regulations had now been received. In another similar case the Minister advised that amendments of regulations which had now been finalised had been delayed by the commencement of amendments of the Act.

One particularly important area for the Committee to monitor is undertakings relating to national uniform legislative schemes. There are presently four separate undertakings outstanding to amend regulations made under the road transport reform national scheme, which provided for model laws which would then be enacted by all the States and Territories. The legislation also provided for a Ministerial Council which had to approve model laws and any amendment of them. The different Acts which set the broad framework of the scheme did not themselves include any substantive provisions regulating vehicles or traffic, but instead provided for this to be done by regulation. The Committee considered the regulations comprising the different modules of the scheme and over a two year period received undertakings to amend to remove strict liability offences, to provide for AAT review and to improve safeguards for administrative penalties. The Minister also advised that the regulations would not commence before the amendments were made. The Committee reported in detail on these undertakings on 19 September 1995, Senate Hansard p.976, and 12 March 1998, Senate Hansard p.892.

The Minister has now advised that amendments have been drafted in relation to two of the four sets of regulations although final clearance still has to be obtained from the Australian Transport Council and all of the State and Territory governments. However, this was acceptable in light of the Minister’s assurance that the original regulations would not commence until amendments had met the Committee’s concerns. The Minister also advised that it is unlikely that the other two will commence because a review was about to be initiated. The National Road Transport Commission has advised, however, that any revised regulations will take into account the concerns of the Committee.

There are a few matters arising out of this exercise which require further action, but in general the Committee can report that the position in relation to implementation of undertakings given to the Committee is broadly acceptable. The Committee intends to continue to monitor closely compliance with undertakings.

Bill O’Chee
Chairman